If you’re anything like me, you recognize that the next president will appoint as many as three justices to the Supreme Court. The future of the Constitution itself is at stake. And the election this fall may be the last chance that the American people have to influence the balance of the Supreme Court for a very long time. We simply can’t afford to mess this one up.
This year’s presidential candidates recognize the stakes, too. They have shown unparalleled interest in the Supreme Court’s future. Republican Donald Trump has been the most assertive, promising to choose the next Supreme Court nominee from a list of 21 well-qualified lawyers who have a strong track record of fidelity to the original meaning of the Constitution. In so doing, Trump encouraged voters who believe in the rule of law and also set a strong precedent that will serve as an important benchmark for future presidential nominees.
Democratic nominee Hillary Clinton also broke new ground, but not necessarily in a good way. She promised to apply a “litmus test” to judicial selection, nominating only justices who would overturn key protections for political speech and give her administration control over elections in certain states. She also admitted in the most recent presidential debate that she wanted a Supreme Court that would be nakedly partisan, rubber-stamping a list of Democratic policy priorities. Clinton’s Supreme Court, she argued, would strike down voter identification requirements and perpetuate the Supreme Court’s radical pro-abortion decisions. So much for blind justice.
Nobody who has followed Democrats’ rhetoric in recent years should be surprised that Clinton wants to foreordain a series of partisan court victories. In fact, her recent comments were so unsettlingly candid that even the Washington Post’s editorial board admonished Clinton for treating judicial selection as “policymaking through other means.”
As disturbing as Clinton’s comments were, they only tell us what Clinton’s justices would do on issues of importance to partisan Democrats. But what about thousands of other issues that end up before the Supreme Court? After all, it’s judicial philosophy that determines how a judge decides cases long after the partisan issues of this election have become irrelevant. On that question, Clinton has told us next to nothing.
For instance, does Hillary Clinton want principled jurists who will diligently seek and apply the original meaning of the laws? Or does she want justices who think, like Justice Sonia Sotomayor, that the wisdom of their judicial decisions comes from the color of their skin or their gender? Does she, like President Obama, want justices who prize “empathy” over faithfulness to the law? Or does she intend to pick justices who take their oath seriously and put aside their personal views and political loyalties when deciding cases?
At this point, Clinton is the only major candidate still refusing to answer major questions about the judicial philosophy she will look for in potential Supreme Court justices. She’s also the only one hiding the list of possible nominees that she undoubtedly already has.
We need to know the answers to these questions. The judiciary – and especially the Supreme Court – are just too important to let them slide.
Carrie Severino, a former law clerk for U.S. Supreme Court Justice Clarence Thomas, is chief counsel of the Judicial Crisis Network.
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